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Technology, Media & Telecommunications Publications

In this issue we look at how to create a cyber resilient supply chain, ASIC's renewed focus on cyber resilience, how the incoming GDPR could affect you, medical device cyber security and patient safety, lessons learnt from Yahoo's data breach disaster and Australia and the EU's new cyber security plans.

It is hardly surprising that the Australian Securities and Investments Commission (ASIC) has taken an interest in the mobile app market, given that there has been an aggressive expansion into the mobile space by financial services providers. ASIC has recently cracked down on web and mobile based OTC derivative providers, and apps that facilitate binary options trading (BOT apps). In this article, we focus on issues that arise in connection with BOT apps.

While ASIC has published information on the issue of coins or tokens in initial coin offerings, other regulators around the world have also been issuing guidance, with some taking a much more restrictive approach. Although Australia remains a relatively friendly regulatory environment for such offerings, there are a number of potential regulatory traps, both here and overseas, that issuers should carefully consider before launch. Managing Associate Simun Soljo, Senior Associate David Rountree and Lawyer Chris Walsh report.

In our first issue we look at the outcome of the OAIC's investigation into the Australian Red Cross data breach, lessons learnt from one of the largest cyber attacks in history, directors' liability in relation to cyber resilience, the incoming mandatory data breach notification regime, the NSW Government's recent $11.4 million investment to help tackle critical technology challenges including cyber security, and the Federal Government's new mission to decode cyber vernacular

As of 1 September 2017, merchants will be prohibited from charging excessive payment surcharges for certain payment methods. Under the new rules, businesses can only pass on to customers what it costs them to process a payment. The Allens Competition team have put together a brief overview of the changes and what businesses should do to prepare for the new regime.

With an upward trend in large-scale ransomware attacks and the number of data breaches reported globally, mandatory data breach notification will become law in Australia in February 2018. This will place privacy compliance and cyber security in sharp focus. Partner Michael Park, Lawyer Samantha Naylor Brown and Head Paralegal Hope Williams report on recent global attacks and what they mean for you.

There are significant commercial benefits in executing documents electronically, and Allens has adopted e-signature (using DocuSign) as a service to clients. Allens Senior Finance Counsel, Diccon Loxton, has written an article in two parts that examines the efficacy of e-signatures, and concludes that they are effective, including under s127 of the Corporations Act 2001 and (in various circumstances) deeds.

As part of its implementation of the 'regulatory sandbox' for fintech companies, ASIC is providing relief for certain fintech businesses from the obligation to hold an Australian financial services or Australian credit licence. Relief may be available for up to 12 months and may be useful to businesses in what ASIC refers to as the 'testing' stage of their development. ASIC has also made some changes to the responsible manager requirements for licensees, which may be particularly useful to 'robo advice' providers. Managing Associate Simun Soljo and Associate Jonathan Gardner report.

The High Court today handed down its decision in the high-profile ACCC proceedings against Flight Centre. The High Court allowed the ACCC's appeal from the Full Federal Court, finding that Flight Centre competed with airlines in the sale of international airline tickets and attempted to induce three major airlines to enter price-fixing arrangements. Partner Carolyn Oddie, Managing Associate Robert Walker and Lawyer Darcy McLennan consider the implications.

The Productivity Commission has released a landmark draft report on the ability of individuals, businesses and government to access and use data in Australia. The report criticises Australia's historically conservative approach to data use and proposes a 'fundamental and systematic change' to the way that data is made available and linked. Partner Gavin Smith, Managing Associate Valeska Bloch, Associate Tom Griffin and Lawyer Claudia Hall report.

Following a period of industry consultation, the Federal Government has introduced updated legislation that will introduce a mandatory data breach notification scheme. The new Bill will amend the Privacy Act 1988 (Cth) when it comes into force and will apply to all Australian companies currently subject to the Privacy Act. Partner Gavin Smith, Senior Associate Alice Williams, Associate Tom Griffin and Lawyer Leah Wickman report.

A recent New South Wales Court of Appeal decision concerned a guarantee purportedly signed by e-signature without the guarantor's knowledge. It is an interesting case-study, though the decision is really about ostensible authority and ratification. Senior Finance Counsel Diccon Loxton considers its implications.

In case you haven't heard, last week the High Court handed down its decision in Paciocco v Australia and New Zealand Banking Group Limited. In what was perhaps the most highly anticipated High Court decision of the year, the majority found that credit card late payment fees charged by ANZ were not penalties. Here we look at what the High Court had to say about the penalties rule and what this means for business and for class actions in the financial services space.

In its second decision on predictive coding this year, the English High Court has again accepted the use of this innovative technology in discovery, this time in a contested application. Partner Duncan Travis, Managing Associate Kate Austin and Law Graduate Yi-Ling Ng examine the case and its implications.

Authored by a multidisciplinary team from Allens, Blockchain Reaction is designed to assist business stakeholders, decision makers and in-house counsel across a variety of sectors to understand the technology and how it is being used, as well as navigate the regulatory and legal opportunities and challenges.

Together with your company's constitution, a shareholders agreement provides the foundation for the corporate governance of your startup and outlines what a shareholder can and can't do. It also sets out the shareholders' rights and obligations and their role in the management of the company.

The Australian and Singaporean governments have recently concluded discussions on a landmark agreement that will see the two countries cooperating across a range of strategic initiatives, including in the areas of trade and economics, innovation, education, people and defence. The Comprehensive Strategic Partnership builds on the already strong relations between Australia and Singapore and is expected to provide new cross-border investment opportunities through enhanced bilateral relations. Singapore-based Managing Associate, Jessica Choong, reports.

In this issue we look at an adverse action case; why a redundancy does not necessarily constitute a termination; the importance of a consistent process to deal with bullying in the workplace; the fairness of a dismissal for failing workplace drug tests; and when a company can prevent an employee from going to work for a competitor.

There were three announcements this week that will serve to bolster the emerging Australian FinTech sector. The Government released a statement in support of FinTech as part of its National Innovation and Science Agenda, while ASIC issued two sets of guidance: an information sheet for providers of marketplace lending products, and draft guidance to providers of digital financial product advice. Partner Gavin Smith, Managing Associate Valeska Bloch, Senior Associate Simun Soljo and Senior Paralegal Connie Ye report.

A New South Wales legislative committee has released a report following an inquiry into remedies for serious invasions of privacy in New South Wales. In an unexpected and controversial move, the report recommends that the NSW Government 'take the lead' by introducing a statutory cause of action for serious invasions of privacy. Partner Gavin Smith and Lawyers William Coote and Laura Bereicua look at the controversial report which, if it were to be enacted, will allow individuals to sue companies for invasions of privacy.

The Federal Government has introduced a narrow package of media ownership reform which, if enacted, will reduce the restrictions imposed by the Broadcasting Services Act 1992 (Cth) on the ownership of media assets across platforms and markets. Partner Ian McGill and Lawyer Ben Murphy report on these deregulatory changes that have the potential to spark consolidation among traditional media operators.

A recent decision of the English High Court may pave the way for the use of 'predictive coding' in large scale discovery and regulatory investigations in Australia. Partners Nick Rudge and Duncan Travis, Managing Associate Kate Austin and Associate Emily Giblin look at the benefits and risks of the new software.

The Commissioner of Taxation has, in a recent Australian Senate Estimates hearing, expressed frustration that companies potentially subject to Australia's cross-border anti-avoidance laws (including the new Multinational Anti-Avoidance Law or MAAL) which have documents offshore, outside the reach of his access powers, are not providing him with relevant information - either at all, or in what he regards as a timely manner. He has threatened to raise assessments, which would force these companies to object against those assessments and provide further information if they wish to prove the assessments are excessive. Although affected non resident entities may not have assets in Australia, this does not mean the Commissioner will be unable to enforce the tax debts which would arise on such assessments.

The Administrative Appeals Tribunal has overturned the Grubb determination of the Commonwealth Privacy Commissioner and found that mobile network data from an individual's phone activity does not constitute 'personal information' under the Privacy Act 1988 (Cth). Partners Michael Pattison and Gavin Smith and Associates Priyanka Nair and Tom Kavanagh report on this important decision that provides further guidance on the requirement for personal information to be information 'about an individual'.

We look at how Australia keeps up to date with international best practice by amendments to ACICA arbitral rules and international arbitration laws; potential improvements and innovations identified in the 2015 Queen Mary University of London International Arbitration Survey; the investor-state dispute settlement mechanism under the Trans Pacific Partnership agreement; and in Hong Kong, increasing support for third party arbitration funding and the introduction of arbitrator 'report cards'. This issue has been edited by Partner Andrea Martignoni and Senior Associate Catherine Li.

In an eagerly awaited appeal decision in RPL Central v The Commissioner of Patents, the Full Federal Court has decided that the evidence-gathering method the subject of RPL Central's innovation patent was a 'mere scheme', abstract idea or business method that did not constitute patentable subject matter. Partner Chris Bird and Senior Associate Anthony Selleck report.

The Ideas Boom has arrived with the Federal Government's National Innovation and Science Agenda. Central to the new agenda are a raft of tax and regulatory measures designed to encourage greater investment in startups to help them both get off the ground and to survive the ‘valley of death’ with greater access to Series A capital.

Prime Minister Malcolm Turnbull has unveiled the hotly awaited National Innovation and Science Agenda (NISA). The Prime Minister declared the beginning of the Ideas Boom, stating that 'unlike the mining boom, this is a boom that can continue forever'. The NISA comprises more than 20 individual policies and will deliver $1.1 billion worth of measures to kick-start the Ideas Boom over the next four years. But, at first blush, the view of the Allens Accelerate team is that the measures will constitute a quantum leap for the startup landscape in Australia.

The new package of legislation overhauling Australia's foreign investment laws, the first major revision in 40 years, commenced on 1 December 2015. While many features of the previous regime have been retained (and sometimes re-named), there are also a number of significant changes. Partners Jeremy Low, Wendy Rae and Richard Kriedemann and Senior Associate Eve Regnard review the key new elements.

The Federal Government's electronic health records system may have a new lease on life following the introduction of a new Bill that attempts to improve the system's effectiveness with key changes such as the transition to an 'opt-out' approach. Partner Ian McGill, Senior Associate Phil O'Sullivan and Associate Emily Cravigan report.

The new Turnbull Cabinet has made clear its intention to support innovation, so that Australia can have a thriving economy. The Treasury has already done some work in this area, releasing a consultation paper on crowd-sourcing equity funding (CSEF) for startups and small business.

The recent hacking of website AshleyMadison.com has exposed the website's parent companies to lawsuits in the US and Canada and has attracted the attention of the Australian Privacy Commissioner. The Ashley Madison hack will undoubtedly fuel the perception that threats to privacy are growing in the digital age. Partner Gavin Smith, Senior Associate Aleisha Brown and Law Graduate Shelley Drenth examine the litigation risks that stem from incidents of cyber-attack or data breach.

There's an assumption that everyone is on social media these days, even when they're at work – and they probably are. Many startups embrace social media, but, as an employer, you will need to understand and manage the risks that come with the use of social media in the workplace.

Grasping tax in the early days of your business is essential – you want to ensure you are keeping everything above board, while not paying unnecessary tax or, importantly, missing opportunities to apply tax offset mechanisms to your business.

To coincide with Privacy Awareness Week, the Office of the Australian Information Commissioner has released a number of business resources, a Privacy Management Framework to assist businesses to comply with their obligations under the Australian Privacy Principles, and the results of its audit of the online privacy policies of 20 Australian and international organisations. The OAIC has also made some announcements regarding its next areas of focus. Partner Gavin Smith, Senior Associate Valeska Bloch and Lawyer Tom Kavanagh report on these updates and how they might affect your business.

GST is to be applied to the supply of services and other intangibles by non-residents to Australian consumers under legislation proposed to apply from 1 July 2017. This will include the supply of digital products and the supply of other services. The liability for GST on such supplies made through an electronic marketplace will be shifted from the supplier to the operator of the marketplace in certain circumstances. Partner Adrian Chek and Senior Associate Jennee Chan report.

The Government has announced as part of the Budget that it will introduce a new multinational anti-avoidance law into Part IVA of the Income Tax Assessment Act 1936. The new law will apply to tax benefits obtained on or after 1 January 2016. It is aimed at 30 identified multinationals with Australian sales agency arrangements that the Government claims may artificially avoid having a taxable presence in Australia - and will seek to subject them to income tax, withholding tax and penalties as if they did have such a presence. An exposure draft of the new Multinational Anti-Avoidance Law (MAAL) legislation and Explanatory Material has been released (with submissions due by 9 June 2015). Partner Toby Knight and Senior Associate Jennifer Richards outline the proposed new measure and explore its implications.

In a decision published this week, the Australian Privacy Commissioner has clarified that 'metadata' may be personal information, when an organisation has the capacity and resources to link that information to an individual. Partner Michael Pattison, Associate Priyanka Nair and Law Graduate Leah Wickman report on the Commissioner's determination, which found that Telstra breached the Privacy Act by failing to provide an individual with access to his metadata.

The Australian Government has released its alpha Digital Service Standard, which establishes criteria that all Australian digital government services must meet to ensure they are simpler, faster and easier to use. The Digital Service Standard is part of the Coalition government's push to deliver government services digitally from start to finish. In this article, Partner Ian McGill, Senior Associate Valeska Bloch and Associate Byron Frost examine the Digital Service Standard and its impact on government agencies and service providers.

Telecommunications industry body the Communications Alliance has submitted an updated Copyright Notice Scheme to allow rights holders to better use existing legal avenues to defend their rights. The updated Notice Scheme resolves a number of issues that were left open when the first draft of the Notice Scheme was published in February. Partner Andrew Wiseman and Lawyer Ben Murphy report.